Burden of Proof

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

WEN HO LEE, FORMER LOS ALAMOS SCIENTIST: The last nine months have been a little tough for me. But I think I'll survive.

NORMAN RAY, U.S. ATTORNEY: Why did Dr. Lee make the tapes? What did he do with them? Does anybody else have them now? This agreement gives us the best opportunity to answer each one of those critical questions.

MAHLON WILSON, WEN HO LEE'S NEIGHBOR: I'm here because I think this is really bigger than Wen Ho Lee. And by showing support for Wen Ho Lee, we express our outrage at how the government behaved in this case.

Today on BURDEN OF PROOF: The Wen Ho legal team joins us live from Albuquerque, New Mexico.

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello, and welcome to BURDEN OF PROOF.

This morning in White Rock, New Mexico, former Los Alamos scientist Wen Ho Lee woke up in his own home for the first time in nine months. Lee struck a deal with prosecutors, pleading guilty to one of the original 59 felony charges against him, and was sentenced to time served.

ROGER COSSACK, CO-HOST: In an Albuquerque, New Mexico, courtroom yesterday, U.S. District Judge James Parker blasted government officials for leading him to believe the defendant was a threat to national security and issued an apology to Lee.

But the case of Wen Ho Lee is far from over. As part of the plea agreement, he still faces questions from prosecutors, under oath.

(BEGIN VIDEO CLIP)

JANET RENO, ATTORNEY GENERAL: You have had significant information that related to this nation's national security. We went over the evidence carefully. The judge has his role as a trier, determiner of fact. We have our responsibilities, both to make sure that we feel like we have evidence sufficient under the law to charge, and that then we do everything we can to protect the national security, i.e., to find out what happened to the information.

Mark, first to you, I want to talk about the judge. I'm looking through the transcript from the proceedings. I've never seen a federal judge say to a defendant that he felt that the defendant had been terribly wronged by being held in custody pretrial, under demeaning conditions.

He also sad that he was sad about what happened, that he had been misled by the Department of Justice. What did the prosecutor do as the judge was blasting him?

MARK HOLSCHER, WEN HO LEE'S ATTORNEY: I didn't see much reaction from the prosecutor, Greta. Frankly, that's a courtroom scene I've never seen before, and I'm not sure I will ever seen it again.

VAN SUSTEREN: But was the prosecutor sort of sitting there, the whole prosecution team, and just taking it. I mean, there must have been something. I've never seen a judge -- this is a Reagan appointee, a very conservative judge, I suppose. But who obviously, he claims he's been misled by the Department of Justice. I mean, it just doesn't happen often.

HOLSCHER: Well, I have to tell you, Greta, that Mr. Stamboulidas, who was brought in recently to take over the case, wasn't involved in the case in December. So I think, in some ways, the judge's statements were directed at others.

VAN SUSTEREN: Wait a second. I know I don't want to put you in a position to argue for the prosecutor, but I read the transcript, and when the judge said to them basically: Why in the world were two weeks ago you were telling me this guy is such a huge threat to national security, and today you are agreeing to have him released. And the prosecutor said: Well, we've had assurances the past week, we have assurances that he wasn't a threat to national security.

I got to tell you, and I am not going to put you in a position, Mark, of defending the prosecution, but I think that's the lamest response I have ever heard from a prosecutor.

HOLSCHER: Well, I didn't defend him in the last nine months, and I don't want to start today, Great.

COSSACK: Nancy, I know you practice in the Albuquerque, New Mexico area, and you know, quite frankly, I've known you for a lot of years. You know this judge. What is his reputation? Is he known as a tough law and order judge because I, too, have never seen anything like this from the bench in all the years that I ever practiced.

NANCY HOLLANDER, WEN HO LEE'S ATTORNEY: I've never seen anything like it either, Roger. I have appeared before Judge Parker, many, many times. I have always believed him to be fair. He's a very thoughtful judge. he gives lawyers the time they need to argue their case. He's got tremendous integrity. But I've never seen him as emotional as he was, and I have never heard him say the things that he said yesterday.

VAN SUSTEREN: Jeff, the attorney general of the United States has said in the last 24 hours that she feels, quote, "comfortable" with the investigation. I'm glad she feels comfortable, because frankly I don't know how comfortable a lot of Americans feel about it.

Is this investigation, you think, was directed from the Justice Department or do you think this came out of the local U.S. attorney's office?

JEFFREY HARRIS, FORMER DEPUTY ASSOCIATE ATTORNEY GENERAL: I think the decisions were made in the Justice Department ultimately. I've seen those same statements, Greta, from the attorney general, Director Freeh's statement. And I will tell you, I fear for the Constitution of the United States, when we have cabinet officers, and the head of the FBI making statements.

This is about the most outrageous prosecution I'm familiar with in my 30 years of practicing law, many of which were in government service.

VAN SUSTEREN: And you know, Jeff, the thing that bothers me the most, I mean, I hope that they have something -- I hope, for their own sake, that they know something we don't know that justifies it so that saying comfortable means being comfortable. But I got to tell you, there's nothing from an outside point of view that, in any way, would make me proud of this prosecution.

HARRIS: What they are doing now is circling the wagons. That is clear. They know the congressional onslaught is coming, and they are circling the wagons.

COSSACK: Mark, let's talk a little bit about the negotiations in this case. Tell us what they were like when they started. I want to say that one of the things that has been put out by the government was: Look, we went to the defense team nine months ago. If they would have just told us the same things they told us now, he would never have had to serve those nine months.

Fist of all, is that true? And then, what about the negotiations?

HOLSCHER: Roger, I would have to disagree with their characterization. First, a little background. In March of 1999, federal agents interrogated Dr. Lee on at least three different occasions. The final interrogation, they falsely accused him of espionage, they asked him to sign a written confession to espionage, for which he would have served a potential life sentence or a death penalty.

So we have a situation where he was threatened in March, and the transcript of this recorded interrogation, I have to tell you, is one of the most chilling transcripts I have read. They told him specifically that the last spies who would not cooperate were the Rosenbergs and that they were executed, and let him know that his entire family would be able to read in the "New York Times" that he was the next spy.

That's the background we have for this, quote, "offer" to let us cooperate. We have always been in the position that with any kind of protection for Dr. Lee for his statements we would cooperate. There was no offer made to us to resolve this case before indictment.

We appreciate the reasonable position the Department of Justice took, with the help of United States Circuit Judge Levy in the last few weeks, but it is simply not true that we wouldn't accept a time served deal for Dr. Lee.

If in December of last year, we were approached and told, not that Dr. Lee would be charged with 39 counts with life sentences attached to them, but that there could be a disposition worked out where his cooperation would allow him to be with his family, I can assure you that Nancy, John Klein, and I, would have done whatever we could to make sure that Dr. Lee wasn't in custody.

COSSACK: All right, Mark, let me interrupt you for a second. We have got to take a break. Up next, solitary confinement for Dr. Lee. What was it like? We'll ask his lawyers when we come back. Stay with us.

(BEGIN LEGAL BRIEF)

Wednesday in Boston, the Massachusetts Institute of Technology settled with the parents of a freshman student who died of an alcohol overdose three years ago.

Scott Krueger, 18, died after lapsing into an alcohol-induced coma just five weeks after arriving on the MIT campus. His family will receive $4.75 million in compensatory damages.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SUSTEREN: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the World Wide Web. Just log on to CNN.com/burden. We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. If you missed that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show, and even join our chat room.

(BEGIN VIDEO CLIP)

NORMAN BAY, U.S. ATTORNEY: This case was not about race, it was about the actions of a man who mishandled huge amounts of classified data and who got caught doing it.

Let's what the prosecutors said about Dr. Lee's conditions in solitary confinement.

(BEGIN VIDEO CLIP)

GEORGE STAMBOULIDAS, ASSISTANT U.S. ATTORNEY: ... and misreporting on the conditions of Dr. Lee's incarceration. You should know that he was in this building four days a week, six and a half hours a day. He wasn't in a prison cell under horrendous conditions, he was here meeting in a spacious areas with his attorneys preparing for his case. He also was traveling to Los Alamos. on occasion. He also, as time went on, had recreation at all times. There was a point when he had more restrictive recreation. We got him additional recreation, seven days a week.

(END VIDEO CLIP)

COSSACK: Nancy Hollander, I know that you were very involved with this part of Dr. Lee's case. Tell us about his solitary confinement. The government says, well, look, he was with his lawyers four days a week, had a lot of recreation. What was it like for him?

HOLLANDER: Well, let me tell you that, until April, he was not with his lawyers because it took them that long to set up the room where we could review classified information with him. So from December till April, he was in that cell every day, every minute every hour except for one hour a day when he went out into an outside area with guards, completely shackled, to have what they called recreation.

By shackled I mean he was in leg irons, he had a metal chain around his waist and he was handcuffed to it so that his hands were handcuffed to his waist. And then he had a soccer ball that he could kick around. He also, once he started coming to the courthouse, he came in complete shackles, just as I've described, every day, he had Marshals watching him. While he met with us, we couldn't even open the blinds in the room, so he could never see out.

They never took the leg irons off the entire four or five or six hours he was with us. They took him downstairs to the Marshal's lockup to eat his lunch in the lockup. If he just wanted to go to the restroom, he had to go out -- we had to go ask a Marshal, a Marshal would put all the handcuffs back on and take him 20 feet out a couple of doors to a bathroom and bring him back.

VAN SUSTEREN: Nancy, let me ask you something about that. I mean, lots of times defendants are in what we call protective custody, which is oftentimes the same thing as solitary confinement.

HOLLANDER: Yes.

VAN SUSTEREN: Was this confinement between December and April, was that based on a defense request, number one? And number two, if not, did you ever attempt to challenge the conditions under which he was being held?

HOLLANDER: We requested when he was first arrested -- I was with him when he was first arrested. We did request that he be in a protective custody over that first weekend because we were concerned. He had never been in a prison, we didn't really know what was going to happen. After that, it was based on the attorney general's specific order called the "special administrative measures." And we had to fight tooth and nail to get him the tiniest little concessions.

He didn't even have a radio. Everyone else in that jail, for $20, can buy a radio unless they're in solitary, which is punitive. We finally got him a radio. He was allowed to make telephone calls twice a week for 15 minutes each. They had to be in English, they had to be to specific phone numbers.

And you have to remember that, for this entire nine months, he got to see his wife once a week with two FBI agents sitting in the room. He never touched a single member of his family for nine months. He was behind glass.

VAN SUSTEREN: And let's not forget that for that entire nine months, he had a constitutional right of presumption of innocence.

Jeff, you're shaking your head no as you listen to Nancy.

HARRIS: I've never heard of anything like this. I really think that the attorney general, in her zeal to protect the national security, has forgotten that she has an obligation to defend the Constitution of the United States. This is disgusting in the extreme. And I certainly hope Senator Specter follows through and gets to the bottom of this. This is just an outrage beyond anything that I've heard.

COSSACK: Nancy, in the end, it seemed like you were ready to make a deal or -- with the government and the government was certainly ready to capitulate, particularly after what occurred with the FBI agent who recanted some of his testimony. But yet, still, the government would not back off of this solitary confinement?

HOLLANDER: No, they wouldn't. And the judge, when he ordered Dr. Lee released, the government literally wanted him incarcerated in his home. They wanted ridiculous things. They wanted a video camera in his backyard in case somebody jumped into the backyard. They wanted his phone tapped.

Now, you've got to remember that, for eight months before they arrested Dr. Lee, they never tapped his phone, they never had any controls on him, and then all of a sudden he was arrested and they wanted these controls, and then they wanted virtually every single control in his house. They even insisted that his wife should be searched every single time she came and left the house, even though she has never been charged with any crime and is not a suspect.

VAN SUSTEREN: Mark, Roger politely calls it recanting of testimony. Is that how you would describe the testimony of the FBI agent on August 17 when, apparently, he gave, quote, "incorrect" -- he admitted to "incorrect testimony" at an earlier date?

HOLSCHER: Well, Greta, I can tell you that in December of 1999, there was some very jarring testimony from the lead agent that Dr. Lee had lied to another scientist and said he wanted to download another resume and in fact had then downloaded files. This was critical. It was the first fact that Judge Parker relied on in his detention order. In fact, that same agent admitted on cross-examination, when I finished the cross-examination of him, that on seven different occasions he reviewed the witness statement that he had prepared himself which indicated that Dr. Lee had truthfully told his fellow scientists he wanted to copy some files.

Now, the judge, I believe, was charitable in his views there. There were three or four other areas where the agent was forced to restate his testimony. It was a...

VAN SUSTEREN: And meanwhile, your client is held in what seems to be solitary confinement for a long period of time facing this indictment, all these life counts.

We need to take a break.

When we come back, was this selective prosecution? And did race play a role in this prosecution? Stay with us.

(BEGIN Q&A)

Q: Why has the International Amateur Athletic Foundation hired an in-house lawyer?

A: To defend against appeals from athletes who were banned for allegedly taking performance-enhancing drugs. Last year, the IAAF spent $500,000 on outside counsel.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: Wednesday, in Albuquerque, New Mexico, former Los Alamos scientist Wen Ho Lee entered a guilty plea for a felony. At the hearing yesterday, let me read a little bit what the judge said, it said: "They" -- meaning the United States government -- "did not embarrass me alone, they have embarrassed our entire nation, and each of us who is a citizen of it."

Nancy, let me ask you about other reference. The judge says, "I might say that I am also sad and troubled because I do not know the real reasons why the executive branch has done all of this. We will not learn why because the plea agreement shields the executive branch from disclosing a lot of information that it was under order to produce that might have supplied the answer."

Was that in request for information from the defense to discover whether or not this was racially motivated?

HOLLANDER: Yes, it was. The discovery was due, would be due on September 15th, tomorrow. The court had ordered that the government produce the discovery to him in-camera.

VAN SUSTEREN: Did you have any information this was racially driven.

HOLLANDER: We had a great deal of information. It was that information that convinced the judge to look at the -- our complete request in-camera. We had evidence that Dr. Lee was targeted because he was Asian-American. We had people from counterintelligence at Los Alamos who specifically stated that he had been targeted as an Asian- American.

You know, when the list was drawn up of who were the suspects, it included some people who could not have been the suspects who were Asian-American, and Dr. Lee. And he was -- there just doesn't seem to be much question that the fact that he was Asian-American certainly had a good deal to do with it.

VAN SUSTEREN: You know, Roger, I would love to invite the prosecutors on...

COSSACK: I hope they will come on.

VAN SUSTEREN: I hope they will come on because we have got a lot of questions for them as well.

COSSACK: Yeah, and I guess, Mark, in just a few seconds, do you intend to file a civil suit in this case?

HOLSCHER: No, I don't. I'm not sure what Dr. Lee's civil lawyers are going to do. We were just concentrating on trying to get him home. And we'll leave that issue for other lawyers for another day. There is a Civil Privacy Act case pending that Brian Sun and some other lawyers have filed in Washington, D.C. But we are not involved in that lawsuit.

COSSACK: All right, that's all the time we have for today. Thanks to our guests and thank you for watching.

VAN SUSTEREN: This afternoon on CNN, join my co-host, Roger, who is from Hollywood, on "TALKBACK LIVE." Today's topic is: Is Hollywood marketing sex and violence to our kids? and should the government crack down on Tinseltown? That's at 3:00 p.m. Eastern time, noon Pacific. Don't miss it.

And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com